These Terms of Service (these “Terms”) govern Customer’s access to and use of KHTS, Inc. (“KHTS”) software-as-a-service offerings and related services. The Services may be provided or otherwise made available by either KHTS or by an authorized KHTS reseller (“Reseller”).

These Terms, along with the Order (as defined below), form a legally binding contract between KHTS and the customer (“Customer”) accepting the Order. Customer accepts these Terms by: (a) signing an Order that refers to these Terms, and/or (b) clicking on an “Accept” button or otherwise indicating acceptance of these Terms when accessing Services. The individual accepting these Terms on behalf of Customer represents that they have the authority to enter into the Order under these Terms and bind Customer.

If Customer does not agree to be bound by these Terms, then KHTS does not grant Customer a right to use any Services or Software.

1.     Definitions

The following defined terms have the meanings indicated below. Other capitalized terms have the meaning assigned to them elsewhere in these Terms.

       (a)  “Authorized User” means any current Customer employee or contractor who is provided access to the SaaS Service in accordance with these Terms and the Documentation. Additional types of Authorized Users may be identified in the Order.

       (b)  “Customer Data” means all data uploaded or otherwise provided to KHTS by Customer and its Authorized Users by or through use of the Services.

       (c)  “Customer-Supplied Components” mean the data sources, third-party software, hardware, connectivity, minimum internet speeds, and other items that Customer provides or is required to provide for use of the Services. The Customer-Supplied Components may be specified in the Documentation and/or the Order.

       (d)  “Documentation” means the user manuals, operating manuals, and/or other documentation made available by KHTS for use with the Services.  

       (e)  “KHTS Content” means content and data owned by KHTS, a KHTS affiliate, or their suppliers, and that is provided to Customer through use of the SaaS Service.

       (f)  “Order” means the order form (including an online order form), proposal, statement of work, or other document that is signed or electronically accepted by KHTS (or by its Reseller or agent) and Customer, that references these Terms and that specifies as applicable the SaaS Service, the Services Term, other Services, fees, usage limitations, and other terms and restrictions.

       (g)  “SaaS Service” means delivery of the Software to Customer on a hosted, software-as-a-service basis, as may be further described in the Order.

       (h)  “Services” mean, collectively and as applicable, the SaaS Service, the Technical Services, and the Support Services.

       (i)  “Services Term” means the term for the Services as specified in the Order.

       (j)  “Software” means the proprietary KHTS software products provided as a SaaS Service under these Terms, including all new releases, enhancements, updates and error corrections thereto, and all Custom Developments (as defined below), made available to Customer and including all associated user interfaces, algorithms, KHTS Content and Documentation.

       (k)  “Statistical Data” means statistical, meta, usage and other operational data and information related to Customer’s use of the Services, including statistical and performance information related to the provision, operation or improvement of the Services. Statistical Data will not include any personally identifiable information.

       (l)  “Support Services” mean the support services provided under these Terms.

       (m)  “Technical Services” mean the setup, training, implementation, custom integration, custom report building, and other technical services provided by KHTS or Reseller, as agreed by the parties in the Order.

2.     Services

       (a)  Right to Use SaaS Service. Subject to these Terms including the payment of all applicable fees, KHTS hereby grants Customer the non-exclusive, non-transferable (except in compliance with Section 11), and non-sublicensable right and license to use and access the SaaS Service and Documentation during the Services Term solely for the internal purposes of Customer. The Order may contain limitations on the use of the SaaS Service, including number of Authorized Users, the projects with which the SaaS Service may be used, and other limitations. Customer agrees to use the Services in compliance with all applicable laws, the Documentation, the Order, and these Terms. Customer has no right to use test or “sandbox” instances of the SaaS Service unless expressly specified in the Order. Customer may use and access the SaaS Service solely through the website(s) specified by KHTS.

       (b)  Authorized Users and Access Controls. Customer is responsible for authorizing Authorized Users in accordance with the procedures in these Terms, the Order and/or the Documentation. Customer shall use commercially reasonable efforts to prevent unauthorized access to the SaaS Service and is responsible for identifying and authenticating all Authorized Users, for approving access by Authorized Users to the SaaS Service, for controlling against unauthorized access by Authorized Users, and for maintaining the confidentiality of usernames, passwords and account information for Authorized Users. Customer shall be fully responsible for use of the SaaS Service by Authorized Users and their compliance with all applicable laws, the Documentation, and these Terms. Customer is responsible for revoking authorization if Authorized Users do not meet the requirements of these Terms.

       (c)  Restrictions. The Services may be used solely by Authorized Users for lawful purposes and in accordance with scope of use granted by these Terms. Customer and Authorized Users shall not: (i) use the SaaS Service to store or transmit infringing, libelous, malicious, or unlawful materials, including any malicious code or any content that violates another individual’s privacy rights; (ii) use the Services for any unlawful purpose; (iii) interfere with or disrupt the integrity or performance of the SaaS Service or related data; (iv) attempt to gain unauthorized access to the SaaS Service or related data, systems or networks; (v) copy, rent, lease, sublicense, distribute, modify, adapt, reverse engineer, decompile, translate or disassemble the Software or SaaS Service in whole or in part; (vi) create or develop any products or services that compete with the Services; (vii) use the Services or any output thereof for the benefit of or for performing work for any third party; or (viii) access, use, copy, modify or distribute any KHTS Content other than through the interfaces supplied by the SaaS Service.

       (d)  Updates. Customer acknowledges and agrees that KHTS may, from time to time, modify and update the SaaS Service. No update to the SaaS Service will materially reduce, in the aggregate, the functionality of the SaaS Service as of the effective date of the Order. KHTS will perform updates outside of normal business hours (9:00 am – 5:00 pm on non-holiday weekdays, eastern time).

       (e)  Customer Obligations. Customer shall: (i) be responsible for the Customer-Supplied Components, including all systems and databases that connect with or interface to the SaaS Service; (ii) be responsible for the accuracy and completeness of all Customer Data and for any consents and notices required to permit (a) Customer’s use and receipt of the Services and (b) KHTS’ accessing, storing, and processing of Customer Data under the Order; (iii) employ physical, administrative, and technical controls, screening, and security procedures and other safeguards appropriate to prevent unauthorized access to or use of the SaaS Service; (iv) notify KHTS immediately of any known unauthorized access to or use of the SaaS Service, or any other known or suspected breach of security, and (v) use reasonable efforts to immediately stop unauthorized access to the SaaS Service that is known or suspected by Customer. KHTS may in its sole discretion delete or disable access to Customer Data or any third-party content in the SaaS Service that KHTS believes is in violation of law or these Terms.

       (f)  Third-Party Products and Data Sources. KHTS may from time to time make third-party services and software available to Customer (“Third-Party Products”). Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions to the extent identified in the Order. The SaaS Service may also interface with or receive data from third-party software, services and persons (“Data Sources”). Notwithstanding anything to the contrary herein, KHTS makes no warranties or commitments regarding the operation of any Third-Party Products or regarding the availability, reliability or accuracy of any data supplied by Data Sources.

       (g)  Evaluation and Trial Use of SaaS Service. If Customer validly obtained a limited evaluation or trial or other no-fee right to use the SaaS Service (the “Evaluation SaaS Service“) in the Order, KHTS grants Customer a personal, non-exclusive and non-transferable license to use, for the term of the evaluation/trial, the Evaluation SaaS Service solely for internal testing and evaluation and/or trial use. Section 8(b) below does not apply to the Evaluation SaaS Service. The Evaluation SaaS Service is provided “AS-IS”, without warranty of any kind.

       (h)  Technical Services. As set forth in the Order, KHTS will provide Technical Services for Customer. All Technical Services will be subject to these Terms. If Customer requests additional Technical Services, and KHTS agrees to provide such Technical Services, then KHTS will provide such Technical Services at KHTS’ then-current rates, unless other fee arrangements have been agreed upon, subject to these Terms.

       (i)  Customer Cooperation. Customer shall reasonably cooperate with KHTS and its suppliers in the delivery of Services hereunder, including by providing KHTS and its suppliers with timely approvals and access to Customer’s technical personnel, information, systems, and other items as reasonably requested by KHTS in connection with the delivery of Services.

       (j)  Subcontractors. KHTS may use subcontractors to provide the Services. KHTS will be responsible for any breach of these Terms by any KHTS subcontractors.

       (k)  Service Levels. KHTS shall use commercially reasonable efforts to make the SaaS Service available on a substantially continuous, full-time basis, subject to reasonable downtime for scheduled maintenance. However, KHTS does not guarantee complete availability. Scheduled maintenance will be scheduled outside of regular business hours (eastern time). KHTS will, unless maintenance is required for an emergency reason, provide advance written notice to Customer of scheduled maintenance for the SaaS Service.

       (l)  Support Services. KHTS shall provide Support Services for the SaaS Service solely to the extent set forth in the Order.

       (m)  Provider of Services. The provider of Services may be either KHTS or a Reseller, as specified in the Order. If the provider of Services is a Reseller under the Order, then the term KHTS as used in this Section 2 shall refer to Reseller.

3.     Term and Termination

       (a)  Services Term. The Order shall specify the Services Term. The Services Term shall automatically renew after the initial term for successive annual renewal terms, unless either party provides written notice of termination to the other party at least three (3) months prior to the end of the then-current term. Services fees and other costs may be increased, or renegotiated by the parties, for any renewal term.

       (b)  Breach. Either party may terminate the Order if the other party materially breaches the Order and such breach is not cured after thirty (30) days written notice.

       (c)  Bankruptcy. Either party may terminate the Order if: (i) the other party has a receiver or administrative receiver appointed over its assets; (ii) the other party’s governing body passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation, reconstruction, or merger), or a court of competent jurisdiction enters an order to that effect; (iii) the other party makes a general assignment for the benefit of creditors (iv) the other party ceases or threatens to cease to carry on business; (v) the other party is generally not paying its debts as they become due; or (vi) the other party is the subject of any petition under any bankruptcy or other law for the protection of debtors, except an involuntary petition that is dismissed within sixty (60) days after filing.

       (d)  Suspension. KHTS may suspend the Services, in whole or in part, if: (i) Customer is interfering with or disrupting the integrity or performance of the Services or related data or is otherwise in material breach of these Terms in a manner causing problems with the delivery of the Services to Customer or any other KHTS customer; (ii) KHTS reasonably believes Customer’s use of the Services violates applicable law or KHTS is otherwise required to suspend Customer’s access to the Services by a law enforcement agency or court order; (iii) there is an attack or a security incident affecting the Services or an event occurs that KHTS reasonably believes poses a threat to the integrity or security of the Services; (iv) an Authorized User fails to comply with these Terms or attempts to use the Services beyond the scope of the rights granted or for a purpose not authorized, including access that is reasonably suspected to be fraudulent, misleading or unlawful; or (v) KHTS or its Reseller does not receive fees relating to the delivery of the Services not disputed in good faith when due and does not cure such failure within ten (10) business days after written notice thereof. During any suspension, the Services may not be available in whole or in part and Customer may not have access to Customer Data. KHTS or its Reseller may include in any invoice Customer’s or Reseller’s continuing fees during a suspension. KHTS shall have no liability for any damage or other consequences that may result from a suspension under this Section. KHTS will resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services suspension is cured.

       (e)  Surviving Terms. Termination of these Terms will not affect any accrued rights or liabilities of either party. The following sections of these Terms shall survive termination or expiration of these Terms: 1 (Definitions); 5(e) (Surviving Terms), 3(f) (Return and Deletion of Customer Data), 3(g) (Payment Obligations on Termination), 4 (Fees and Payment), 6 (Intellectual Property); 7 (Confidentiality); 8(d) (Disclaimers); 9 (Limitation of Liability); 11 (Assignment); 12 (Entire Agreement), and 15 (Additional Terms). Within five (5) business days after termination of the Order, Customer shall return or erase all copies of all Documentation provided by KHTS to Customer hereunder that are in Customer’s possession or control.

       (f)  Return and Deletion of Customer Data. Upon Customer’s request made within thirty (30) days after termination of the Order, and for a mutually agreed fee, KHTS will deliver to Customer or its designees a copy of Customer Data held by KHTS in the SaaS Service, in a mutually agreed format. Unless otherwise agreed in writing by the parties or required by applicable law, KHTS will delete and erase all such Customer Data after ninety (90) days after termination of these Terms. Notwithstanding the foregoing, Customer acknowledges that KHTS’ backup systems may automatically retain backup copies of Customer Data. To the extent that KHTS’ backup systems create backup copies of Customer Data, KHTS may retain such backup copies for the period that KHTS normally retains such backup copies. These backup copies are subject to the provisions of these Terms until they are destroyed or erased.

       (g)  Payment Obligations on Termination. Upon termination, Customer shall promptly pay all outstanding amounts due under the Order up to the effective date of termination. In addition, if the Order is terminated by KHTS per Section 3(b) or 3(c), then all Services fees due for the remainder of the Services Term shall become immediately due and payable by Customer as liquidated damages, without any further demand by KHTS or Reseller. The parties acknowledge that KHTS’ actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of KHTS’ potential losses.

4.     Fees and Payment

Except to the extent otherwise set forth in the Order, the following fee and payment terms shall apply:

       (a)  Fees and Payment Terms. Customer shall pay KHTS or Reseller the amounts set forth in the Order. All payments under these Terms shall be: (i) due within thirty (30) calendar days of receipt of invoice, (ii) made in United States dollars and (iii) non-refundable and without offset or deduction. All payments not submitted when due (except for payments timely disputed in good faith) will be subject to interest at the rate of 1% monthly, calculated daily and compounded monthly, or the maximum amount allowed by applicable law if lower, calculated from the date when payment becomes overdue until payment is made. If Customer disputes any invoice amounts, it must do so in good faith, provide KHTS or Reseller with reasons for such dispute within thirty (30) calendar days of receipt of the invoice, pay any undisputed portion of such invoice, and negotiate with KHTS or Reseller in good faith a resolution of such dispute.

       (b)  Taxes. All fees and other amounts payable by Customer in connection with the Services are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on KHTS’ income. If Customer claims tax-exempt status for any purpose in connection with these Terms, Customer represents and warrants that it is a tax-exempt entity and will provide KHTS or Reseller upon request with a correct copy of Customer’s tax-exempt certification.

       (c)  Expenses. Customer shall reimburse KHTS for all reasonable, pre-approved expenses incurred by KHTS in connection with the Order, including but not limited to mileage, airfare, lodging, and meals.

       (d)  No Purchase Order Required. Customer shall pay all applicable fees without any requirement for KHTS to provide a purchase order number on KHTS’ invoice (or otherwise).

5.     API Terms

       (a)  API Limits. The SaaS Service may include one or more application programming interfaces and/or software development kits (“APIs”). Customer agrees to use any APIs in accordance with the terms and limits set forth in the associated Documentation, as may be updated from time to time. Customer agrees not to use any API in a manner that competes with the Services, or that provides API functionality to third parties.

       (b)  Updates. KHTS may update the APIs from time to time without notice to Customer. Customer acknowledges and agrees that such updates may cause issues with any scripts, code or programs previously written with use of the APIs (the “Customer Code”), and that it is Customer’s sole responsibility to update any Customer Code. KHTS does not guarantee backwards compatibility when it updates the APIs.

       (c)  Indemnification for Customer Code. Customer shall defend, indemnify, and hold KHTS harmless arising from all loss, damages, claims, actions, proceedings and expenses arising out of or related to Customer’s and/or any Authorized Users’ use of Customer Code. KHTS has no liability or responsibility for mistakes or actions caused by Customer Code, and/or any errors, misuse or unintended use associated with Customer’s or any Authorized User’s use of the APIs or Customer Code.

6.     Intellectual Property

       (a)  Ownership. Customer agrees that KHTS and its third-party licensors and suppliers own all right, title and interest, including copyright, patent, trademark, trade secret, and all other intellectual property rights, in the Services, Documentation, Software, and Statistical Data (including the look and feel, algorithms, database structures, methodologies, and know-how associated with the Services and Software) and any and all copies. KHTS reserves all rights not expressly granted to Customer under these Terms.

       (b)  Developments. If KHTS or its Reseller creates any modified or new Software, Documentation, or other software-related items, improvements or enhancements (“Developments”) for Customer (“Custom Developments”), Customer agrees that KHTS shall own and retain all right, title and interest in such Custom Developments. Custom Developments will be subject to the same rights provided to Customer in these Terms for use of the SaaS Service and same Services Term. If Customer creates any Developments that are based on or otherwise interface with the SaaS Service (“Customer-Created Developments”), Customer shall own and retain all right, title and interest in such Customer-Created Developments, and Customer grants KHTS a worldwide, nonexclusive, royalty-free right and license to use and copy the Customer-Created Developments as necessary to provide Services for Customer. In addition, Customer acknowledges and agrees that KHTS may create and make available to its other Customers SaaS Service updates and Developments that contain the same or similar functionality as Customer-Created Developments, and Customer agrees not to assert any rights against KHTS to prevent or restrict the foregoing. Customer further acknowledges and agrees that Customer-Created Developments may require an ongoing right to use KHTS SaaS Service to be functional.

       (c)  Ownership of Customer Data. Customer shall own and retain all intellectual property rights in and to Customer Data. Customer hereby grants to KHTS and as applicable Reseller a nonexclusive, royalty-free license during the Term to use, process and transmit Customer Data for the purpose of providing the Services to Customer.

       (d)  Proprietary Rights Notices. Customer agrees not to remove, modify or delete any proprietary rights notices in the Documentation, Software or Services.

       (e)  Certification. Customer agrees that within thirty (30) days of a written request from KHTS or KHTS’ authorized representative, Customer will certify that Customer’s use of the Services conforms to these Terms and will provide supporting documentation. Customer will provide KHTS with reasonably requested information about Customer’s use of the SaaS Service for KHTS to confirm that Customer is complying with these Terms.

       (f)  Feedback. Customer grants to KHTS the irrevocable, perpetual, royalty-free, transferable, and sublicensable right to use feedback regarding any suggested improvements to the Services provided by Customer or any Authorized User for any purpose, including without limitation to modify, supplement, or improve the Services, without payment or other obligation to Customer.

7.     Confidentiality

       (a)  Definition. “Confidential Information” means business, financial, and technical information or data that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to these Terms and that is marked as confidential or that would reasonably be recognized as confidential due to the nature of the information or circumstances surrounding its disclosure. Confidential Information of KHTS includes the non-public aspects of the Services and Software, as well as the structure, organization, design, algorithms, templates, data models, data structures, flow charts, logic flow, and screen displays associated with the Services and Software; and KHTS’ non-public pricing, sales, implementation, and training materials and procedures. Confidential Information does not include information that: (i) is or becomes publicly known or available without breach of these Terms; (ii) is received by a receiving party from a third party without breach of any obligation of confidentiality; (iii) was previously known by the receiving party as shown by its written records; or (iv) is independently developed by the receiving party. These Terms and the Order are the Confidential Information of KHTS.

       (b)  Confidentiality Obligations. A receiving party agrees: (i) to hold the disclosing party’s Confidential Information in strict confidence; and (ii) except as expressly authorized by these Terms, not to use, disclose, or copy the Confidential Information. Without limiting the foregoing, Customer shall disclose and allow access to the Software and Services only for the purpose of supporting Customer’s license to use the Software and Services. Customer acknowledges that KHTS may use Customer’s Confidential Information for the proper management and administration of KHTS, including use for quality improvement, enhancement of products, support, and system maintenance purposes. A receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall inform the other party as soon as practicable, prior to any such required disclosure. Without limiting any of the foregoing, Customer expressly acknowledges and agrees that it shall not permit any third party, nor any employee, representative or agent thereof, that develops, markets or licenses software or services with functionality similar to the functionality of the Services or Software to have access to the Services or Software or to any trade secrets and confidential information therein.

       (c)  Remedies. Each party acknowledges and agrees that any violation of this Section may cause such party irreparable injury for which such party would have no adequate remedy at law and that such party shall be entitled to preliminary and other injunctive relief against the other party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that such party may have at law or in equity.

       (d)  Obligations upon Termination. Upon the termination or expiration of the Order, the receiving party will either return to the disclosing party or destroy all the Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.

8.     Warranty

       (a)  Authority. Each party warrants that it has full authority to enter into these Terms and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder.

       (b)  KHTS Warranties. KHTS warrants: (i) that the SaaS Service will substantially conform to the specifications contained in the applicable Documentation during the Services Term, and (ii) that the Technical Services and Support Services will be provided in a professional and workmanlike manner. Any allegation of breach of a warranty in Section 8(b)(ii) must be made within thirty (30) days after delivery of Services, and Customer’s sole remedy shall be re-performance of such Services.

       (c)  Customer Warranty. Customer warrants that Customer has all necessary rights to provide KHTS with access and use of the Customer Data and the Customer-Supplied Components, as necessary for KHTS to provide Services to Customer.

       (d)  Disclaimers. KHTS does not warrant that the SaaS Service will operate uninterruptedly or error-free or will be completely secure. Customer is solely responsible for the Customer Data, including its accuracy and completeness. The KHTS Content may contain nonconformities, defects, errors, or omissions. The successful operation of the SaaS Service is dependent on Customer’s delivery of the Customer-Supplied Components and use of proper procedures and systems. KHTS is not responsible for errors or issues with any third-party software or systems not supplied by KHTS, including with respect to data communications issues with such software and systems. Customer acknowledges that KHTS and its suppliers do not control the transfer of data over telecommunications facilities, including the Internet, and that Internet accessibility carries with it the risk that Customer’s privacy, confidential information and property may be lost or compromised. The SaaS Service may consist of tools that assist with engineering tasks. Customer acknowledges and agrees that the SaaS Service does not substitute for any engineering analysis and design, and KHTS does not provide engineering services. Customer is solely responsible for verification of results obtained from the SaaS Service. KHTS DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL ACHIEVE ANY SPECIFIC RESULT, WILL MEET CUSTOMER’S NEEDS, OR BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, KHTS AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; WARRANTIES OF NON-INFRINGEMENT; OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.

9.     LIMITATION OF LIABILITY.

CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF KHTS, ITS RESELLER, AND ANY OF THEIR SUPPLIERS RELATING TO THESE TERMS OR THE ORDER SHALL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER UNDER THE ORDER RELATING TO THE SOFTWARE OR SERVICES AT ISSUE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE RELEVANT CAUSE OF ACTION ACCRUED. IN NO EVENT SHALL KHTS, ITS RESELLER, OR ANY OF THEIR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COVER, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; ANY DAMAGES BASED ON INJURY TO PERSON OR PROPERTY OR DEATH; OR ANY LOST SALES, PROFITS OR DATA, EVEN IF KHTS IS TOLD THAT ANY OF SUCH DAMAGES MAY OCCUR. THE FEES CHARGED IN THE ORDER ARE CALCULATED WITH SPECIFIC REFERENCE TO THE LEVEL OF LIABILITIES UNDERTAKEN BY KHTS AND RESELLER HEREUNDER. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO THE FRAUDULENT OR WILLFUL MISCONDUCT OF KHTS.

10.     Indemnification

       (a)  KHTS Indemnification. KHTS, at its expense, shall defend or at its option settle any third-party action, suit or proceeding brought against Customer which alleges that Customer’s authorized use of the SaaS Service infringes any third party copyright, trademark or patent in force in the United States, or misappropriates a third party trade secret enforceable in the United States, and shall pay damages finally awarded against Customer and any settlement amount related thereto agreed in writing by KHTS, provided that (i) Customer notifies KHTS promptly in writing of the claim, (ii) KHTS has sole control of the defense and all related settlement negotiations, and (iii) Customer provides KHTS with all reasonable assistance, information and authority to perform the above at KHTS’ expense. Customer shall have the right to participate in the defense or settlement with counsel of its own choosing at Customer’s expense. The foregoing indemnity shall not apply to the extent that the alleged infringement is attributable to: (1) the combination of the SaaS Service with any products or services not provided by KHTS, (2) modification to the SaaS Service by Customer or its agent, (3) use of the SaaS Service outside the permitted license rights in these Terms, (4) any third-party code contained within the SaaS Service, (5) Customer Data, or (6) Customer’s specifications or instructions. THIS SECTION STATES KHTS’ SOLE LIABILITY TO CUSTOMER WITH RESPECT TO INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

       (b)  Customer Indemnification. Customer, at its expense, shall defend or at its option settle any third-party action, suit or proceeding brought against KHTS arising from or related to Customer’s use of the Services and shall pay damages finally awarded against KHTS and any settlement amount related thereto agreed in writing by Customer, unless such claim is covered by Section 10(a) above or arises due to KHTS’ breach of these Terms, provided that (i) KHTS notifies Customer promptly in writing of the claim, (ii) Customer has sole control of the defense and all related settlement negotiations, and (iii) KHTS provides Customer with all reasonable assistance, information and authority to perform the above at Customer’s expense. KHTS shall have the right to participate in the defense or settlement with counsel of its own choosing at KHTS’ expense.

11.     Assignment

The Order may not be assigned by either party without the prior written consent of the other party; provided that either party may assign the Order without consent to (a) any affiliate of such party, or (b) any party acquiring all or substantially all of the assets or stock, by merger or otherwise, of such party or the relevant division of such party. Any permitted assignee must agree in writing to be bound by these Terms.

12.     Entire Agreement

The parties agree that these Terms, along with the terms of the Order and all terms incorporated herein by reference, are the complete and exclusive statement of the agreement between KHTS and Customer relating to the subject matter of these Terms and the Order, and supersede any proposal, prior agreement, and any other communications relating to such subject matter. KHTS may from time to time update these Terms and other documents incorporated by reference herein. KHTS will provide Customer with notice of changes to these Terms and other documents, which notice may be email or through a notice in the SaaS Service or Customer support portal. Customer’s continued use of the Services after notification of the modified Terms constitutes Customer’s acceptance of the modified Terms. In the event of any conflict between the terms of the Order and these Terms, the terms of the Order shall take precedence. Except as expressly set forth herein, these Terms may be modified only by means of a written amendment signed by authorized representatives of each party. The terms of any purchase order submitted by Customer will not operate to modify or supplement any of these Terms. The parties agree that there are no intended third-party beneficiaries under these Terms.

13.     Independent Contractor

The parties are independent contractors, and nothing contained herein shall be construed to create any other relationship between the parties. Nothing in these Terms shall be construed to constitute either party as the agent of the other party for any purpose whatsoever, and neither party shall bind or attempt to bind the other party to any contract or the performance of any other obligation or represent to any third party that it has the right to enter into any binding obligation on the other party’s behalf.

14.     Artificial Intelligence Features

The SaaS Service may, to the extent specified in the Documentation or Order, contain artificial intelligence features (the “AI Features”). Customer agrees to the following terms related to AI Features:

• Customer expressly agrees and consents to the inclusion of the AI Features in the SaaS Service.
• AI Features are not designed, intended, or to be used as substitutes for professional advice.
• Unless explicitly permitted, Customer may not use web scraping, web harvesting, or web data extraction methods to extract data from the AI Features.
• Customer may not use the AI Features, or data from the AI Features, to create, train, or improve (directly or indirectly) any other AI service.
•  As part of providing the AI Features, KHTS and its suppliers may process and store inputs to the AI Features as well as output from the AI Features, for purposes of monitoring for and preventing abusive or harmful uses or outputs of the AI Features.
• Customer is solely responsible for responding to any third-party claims regarding its use of the AI Features in compliance with applicable laws (including, but not limited to, copyright infringement or other claims relating to content output during Customer’s use of the AI Features).

15.     Additional Terms

       (a)  Force Majeure. Except for Customer’s payment obligations, each party shall be excused from performance and shall not be liable for any delay or failure to perform caused by events outside of its reasonable control, including the occurrence of, war, pandemic, terrorism, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure of the Internet, failure of KHTS’ service providers that are not reasonably preventable by KHTS, act of any government affecting the terms hereof, explosion, flood or other act of God.

       (b)  Choice of Law. These Terms shall be construed in accordance with the internal laws of North Carolina without regard to its choice of law provisions, and all disputes shall have exclusive venue in the federal and state courts in Wake County, North Carolina, and both parties consent to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to these Terms. If any of these Terms shall be found invalid, the term shall be modified or omitted to the extent necessary, and the remainder of these Terms shall continue in full effect. In any action brought by a party related to these Terms, the prevailing party shall be entitled to collect from the other party its reasonable litigation costs and attorney’s fees and expenses.

       (c)  Logo. Customer agrees that KHTS may use Customer’s name and logo as part of a customer list in connection with KHTS’ and as applicable Reseller’s marketing activities, including on KHTS’ and Reseller’s web site. Any other publicity, press release, or case study involving Customer and KHTS must be agreed in writing by the parties.

       (d)  Export. Customer acknowledges that the Software, Services and related technical data are subject to export restrictions under United States law. Customer agrees to comply with all applicable United States and international export and import control laws, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States and other governments (“Export Laws”). Customer shall not directly or indirectly use, export, re-export, release, or transfer the Software, Services, or any Documentation or related materials in violation of the Export Laws, nor shall Customer cause KHTS to violate the Export Laws. Customer represents and warrants that neither it nor any of its affiliates or owners are a “Sanctioned Person,” meaning any individual or entity: (1) named on any relevant governmental denied or restricted party list, including but not limited to: the Office of Foreign Assets Control (“OFAC”) List of Specially Designated Nationals and Blocked Persons, the OFAC Sectoral Sanctions Identifications List, and the sanctions lists under any other applicable Export Laws; or (2) organized under the laws of, ordinarily resident in, or physically located in a jurisdiction subject to comprehensive sanctions administered by OFAC (currently Cuba; Iran; North Korea; Syria; and the Crimea, People’s Republic of Donetsk, and People’s Republic of Luhansk regions of Ukraine/Russia). Customer shall notify KHTS immediately if, during the Services Term, it or any of its affiliates or owners becomes a Sanctioned Person. KHTS may immediately terminate Customer’s rights to the Services upon written notice if the Export Laws prohibit KHTS from providing the Software or Services to Customer.

       (e)  Waiver; Severability; Counterparts. The waiver by either party of a breach of these Terms shall not constitute or be construed as a waiver of any future breach of any provision(s) of these Terms. The invalidity or unenforceability of any provision of these Terms shall not affect the validity or enforceability of any other provision. The Order may be executed in several counterparts, each of which shall be deemed to be an original and all of which shall constitute but one and the same instrument.

       (f)  HIGH RISK APPLICATIONS. THE SOFTWARE AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, INCLUDING THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK APPLICATIONS“). KHTS and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Applications. Customer acknowledges and agrees that it shall not use the Software or Services for any High Risk Applications.

       (g)  Government End-Users. Each of the Services, Software, Documentation, and related items are intended to be “commercial items” to the maximum extent permitted under the US Code of Federal Regulations and any similar laws. All government end users only have the rights set forth herein.

       (h)  Notices. All notices under these Terms shall be in writing and shall be given by: (i) delivery in person; (ii) a nationally recognized next day courier service, (iii) first class, registered or certified mail, postage prepaid, return receipt requested or (iv) e-mail, provided that there is confirmation of receipt. Notices to KHTS will be to 421 Fayetteville Street, Suite 600, Raleigh, North Carolina, 27601, or by email to [email protected]. Notices to Customer will be to the address or email specified in the Order. All notices shall be effective upon receipt by the party to which notice is given. Each party may change its address for receipt of notice by giving notice of such change to the other party.

       (i)  Copyright. KHTS responds to notices of alleged copyright infringement and terminates the accounts of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.

       (j)  Including. When the term “including” or “includes” is used in these Terms of Use, it shall be interpreted to mean “including, without limitation,” and “includes, without limitation,” respectively, so that the items following such terms are understood to be illustrative only and not a complete list.